Hanson v. Kernan

February 9, 2010

LIONEL HANSON, PETITIONER,v.SCOTT KERNAN, RESPONDENT.

FINDINGS & RECOMMENDATIONS

Petitioner is a state prisoner proceeding in propria persona with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a 2001 judgment of conviction entered against him in the Sacramento Superior Court on charges of one count of attempted murder (Cal. Penal Code § 187(a)), and one count of assault with a firearm (Cal. Penal Code § 245(a)(2)).*fn1 Petitioner seeks relief on the grounds that the evidence introduced at his trial was insufficient to support the jury's true finding on a criminal street gang sentencing enhancement. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.

A jury convicted defendant Lionel Hanson of attempted murder (Pen. Code, §§ 664, 187-count I),*fn3 assault with a firearm (§ 245, subd. (a)(2)-count II), false personation (§ 529, subd. 3-count IV), and resisting arrest (§ 148, subd. (a)(1)-count V). As to count I, the jury also found that defendant personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)), and as to count II, that he used a firearm (§ 12022.5, subd. (a)(1)) and inflicted great bodily injury (§ 12022.7, subd. (a)). Finally, the jury found as to counts I and II that they were committed in furtherance of a street gang (§ 186.22, subd. (b)(1)).*fn4 Sentenced to state prison for 25 years to life plus a determinate term of nine years, defendant appeals contending (1) the evidence is insufficient to support the gang enhancement . . .

On July 20, 1999, after purchasing items at a convenience store, 13-year-old Jasmine A. and some of her friends were returning to their neighborhood when they walked by defendant and another male. Defendant was a Nogales Gangster Crip and was wearing blue; Jasmine was wearing a red scarf, the color of a rival gang. Defendant called out to Jasmine's group, asking if they had any "weed." Someone said no and the group continued to walk, but Jasmine and her cousin, Coffee, lagged behind.

Jasmine overheard defendant ask who she was and told Coffee not to tell him. Defendant said, "Fuck you, bitch," but Jasmine did not respond. Jasmine walked a little further and defendant said, "[C]uz, cuz, your mama a bitch." Jasmine responded with something like, "My mama ain't no bitch. Your mama is a bitch. No your mama is a bitch."

Jasmine and Coffee ran and defendant gave chase, catching up with Jasmine as she neared an alley. Jasmine turned around and defendant struck her on the nose with a gun, causing her to fall.

Defendant shot Jasmine in the face, neck and shoulder. Jasmine managed to run away and was taken to a hospital. The wounds were through-and-through, causing six holes in Jasmine, all of which were life threatening.

Detective Adlert Robinson, an expert in gang activity, testified that defendant was a member of the Nogales Gangster Crips, a street gang located in North Sacramento. Robinson opined that the shooting of Jasmine was gang-related because defendant yelled "Crip, Crip, Crip" during the shooting; he asked Jasmine if she was a "slob," a derogatory term for a "Blood" gang member; he used the word "cuz," another word showing gang affiliation; he was dressed in blue, the color claimed by the Nogales Gangster Crips; and he had been disrespected by Jasmine in front of his companion, an action which, pursuant to gang tradition, required retaliation.

For the purpose of establishing the street gang enhancement, Detective Robinson testified to two other incidents by the Nogales Gangster Crips. Kenny Hill, another Nogales Gangster Crip, had a child by a woman with whom he had broken up. One day in August 1996, when visiting the woman, Hill heard the child call the mother's new boyfriend, one Orlandis Murray, "daddy." This upset Hill and resulted in his having an argument with Murray.

Hill left but returned later with a friend and assaulted Murray, biting off his eyebrow. As defendant and his friend left, they threw gang hand signs and announced that they were Nogales Gangster Crips. Robinson opined that because defendant had been disrespected the assault was done to benefit the gang.

Detective Robinson also described an incident in 1999 when Matthew Castillo, Shaunte Murphy, and Lemont West, all Nogales Gangster Crips, shot Merten Larsen in the head while he stood in his home. The shooting was in response to Larsen's having called the police on the gang because they were dealing drugs outside his home. Robinson opined this shooting was for the benefit of the gang.

Petitioner filed a timely appeal of his judgment of conviction in the California Court of Appeal for the Third Appellate District. Answer, Ex. A. That appeal was denied in a reasoned opinion dated November 13, 2003. Answer, Ex. B. On December 29, 2003, petitioner filed a petition for review in the California Supreme Court. Answer, Ex. C. The petition for review was denied on February 18, 2004. Pet., Ex. B. Petitioner subsequently filed a petition for writ of certiorari in the California Supreme Court, which was denied by order dated October 18, 2004. Pet., Ex. C.

II. Analysis

A. Standards for a Writ of Habeas Corpus

Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the ...

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